Butler v. Butler

226 N.C. 594

• Court: Supreme Court of North Carolina
• Decided: October 16, 1946
• Status: Published

Opinion

Seawell, J.

The allowance of support and counsel fees pendente lite in a suit by the wife against the husband for divorce or alimony' without divorce is, in certain aspects, within the discretion of the court. 17 Am. Jur., 531. It is not, however, an absolute discretion to be exercised at the pleasure of the court and unreviewable. It is to be exercised within certain limits and with respect to factual conditions wbicb are controlling. Morris v. Morris, 89 N. C., 109; Moore v. Moore, 130 N. C., 333, 44 S. E., 943; Barker v. Barker, 136 N. C., 316, 48 S. E., 733. Generally speaking (and excluding'statutory grounds .for denial), allowance of support to an indigent wife while prosecuting a meritorious suit against her husband under G. S., 50-16, for alimony without divorce — and in similar actions here and elsewhere — is so strongly entrenched in practice as to be considered an established legal right. Miller v. Miller, 75 N. C., 70; Oliver v. Oliver, 219 N. C., 299, 13 S. E. (2d), 549. In such case discretion is confined to consideration of the necessities of the wife on the one band, and the means of the husband on the other. But to warrant such allowance the court is permitted and expected to look into the merits of the action, and would not be justified in allowing subsistence and counsel fees where the plaintiff, in law, has no case. Brooks v. Brooks, ante, 280; McManus v. McManus, 191 N. C., 740, 133 S. E., 9; Horton v. Horton, 186 N. C., 332, 119 S. E., 490.

Tbe Court is of opinion that tbe jurisdiction of tbe court invoked under G. S., 50-16, is not barred by tbe separation agreement pleaded, and that within tbe frame of her present action, tbe plaintiff may seek such relief as she may be entitled to have.

It appears that tbe wife is without property or resources of her own, is in ill health and unable to earn a living. In so far as tbe jurisdiction of that court is concerned, tbe husband might have quit tbe payments at any time be saw fit. She was entitled to tbe security of a court order. Incidentally, it may be said that this intended security is, doubtless, tbe raison d’etre of tbe statutes themselves.

For the reasons stated, on plaintiff’s appeal the ease must be remanded for proceeding in accordance with this opinion; on defendant’s appeal the judgment is affirmed.

On plaintiff’s appeal,

Error and remanded.

On defendant’s appeal,

Affirmed.